PLJ 2010 Cr.C. (
Present: Manzoor Ahmad Malik, J.
ZULFIQAR ALI and
another--Petitioners
versus
STATE and another--Respondents
Crl. Rev. No. 693 of 2009, decided
on 6.4.2010.
Criminal Procedure Code, 1898 (V of
1898)--
----S. 540--Powers of Court--Held:
Powers of the Court u/S. 540 Cr.P.C. are very wide--Court may summon any body
as witness even if his statement has already been recorded and the only
requirement in this regard is that the evidence of the witness must be
essential for the just decision of the case. [P.
840] A
Criminal Procedure Code, 1898 (V of
1898)--
----Ss. 435 & 439--Criminal
Revision--Summon of witnesses--Respondent and PW were eye-witnesses of the
occurrence--Their names were mentioned in the calendar of witnesses--They were
given up by complainant of the case without their knowledge and the subsequent
act of the complainant showed that they were not given up bonafidely--Court had
summoned them as witnesses--If their statement was recorded, there was no
possibility of any prejudice likely to be caused to the petitioners as they
will have ample opportunity to cross-examine them--Revision petition was
dismissed. [P. 842] B
Mr. S. K. Chaudhary, Advocate for
Petitioners.
Mr. Saqib Akram Gondal, Advocate
for Respondent No. 2.
Mr. M.M. Alam Chaudhary, Addl.
Prosecutor General,
Date of hearing: 6.4.2010.
Order
This revision petition has been
filed against the order dated 04.08.2009 passed by the learned Addl. Sessions
Judge, Nankana Sahib whereby, the application of Respondent No. 2 filed under
Section 540 Cr.P.C. was accepted and Respondent No. 2 along with Muhammad
Muslim was allowed to appear as witnesses.
2.
Brief facts of the case are that a criminal case i.e. FIR No. 37 dated
05.02.2008 under Sections 302/34 PPC, Police Station Barragarh, District
Nankana Sahib was registered regarding the murder of Zulfiqar Ali, father of
Respondent No. 2 against the petitioners of the instant petition and others on the
complaint of Iftikhar Ahmad, real son of the deceased and real, brother of
Respondent No. 2. During the course of the trial, an application was submitted
on behalf of said Iftikhar Ahmad mentioning therein that Respondent No. 2 and
Muhammad Muslim PW be given up as they have been won over. Said application was
duly forwarded by the learned Deputy District Public Prosecutor and was allowed
on 04.07.2009. Thereafter, said Iftikhar Ahmad appeared before the Court and
resiled from his previous statement and in that situation, an application was
filed by the petitioners under Section 265-K, Cr.P.C. but before the decision
of the said application, Respondent No. 2 filed an application under Section
540 Cr.P.C. stating that he and Muhammad Muslim were given up by Iftikhar Ahmad
with mala fide intention which was clear from his subsequent act by not
supporting the prosecution case. Learned trial Court allowed the said
application through the impugned order against which instant revision petition
has been filed.
3.
Learned counsel for the petitioners, in support of this petition,
contends that a witness cannot request the Court that he be examined as witness
and that the witnesses were given up by the
prosecution, therefore, they cannot be re-summoned and reexamined. In support
of his contentions, learned counsel for the petitioners relies upon the case of
"Sakhi Jan v. The State and another" (2006 MLD 681
4.
Learned counsel for Respondent No. 2 opposes this revision petition on
the ground that the Court has ample power to summon and examine any person as
witness if his evidence is material and essential for the just decision of the
case; that Respondent No. 2 and Muhammad Muslim PW were given up with mala fide
intention which is clear from the fact that after given up these two persons,
Iftikhar Ahmad, complainant of the case did not support the prosecution case.
In support of his contentions, learned counsel for Respondent No. 2 relies upon
the case of "Imran Ashraf and seven others v. The
State" (2001 S.C.M.R 424), "Muhammad Mumtaz v. The State" (2001 P.Cr.L.J. 370), "Jafar v. The
State" (1997 P.Cr.LJ. 87) and "Jewan and nine others v. The State" (1980 P.Cr.L.J. 570).
5.
Learned Addl. Prosecutor General also opposes this revision petition and
supported the contentions of the learned counsel for Respondent No. 2 on the
ground that the Court has ample powers to summon any person whose evidence is
material and essential for the just decision of the case.
6.
I have heard the learned counsel for the parties.
7.
The record attached with this petition reveals that on 04.07.2009 an
application was submitted by the learned counsel for the complainant namely,
Iftikhar Ahmad for giving up Irfan Ali, Respondent No. 2 and Muhammad Muslim
PW. There was no objection by the learned Deputy District Public Prosecutor and
said petition was accepted. Thereafter, said complainant himself appeared
before the Court on 11.07.2009 as prosecution witness and stated that the
accused present in Court which includes the petitioners of the instant petition
as well, were not responsible for the murder of his father and thereafter, he
was declared hostile by the prosecution and was cross-examined by the learned
Deputy District Public Prosecutor. In this background, an application was
submitted by Respondent No. 2 wherein, he mentioned that he was given up by the
complainant with mala fide intention and this application was allowed by the
learned Addl. Sessions Judge. An application under Section 540, Cr.P.C. can be
filed before the learned trial Court at any stage. However, it is for the Court
to determine whether the evidence is essential or not, for the just decision of
the case. The powers of the Court under Section 540 Cr.P.C. are very wide. The
Court may summon anybody as witness even if his statement has already been
recorded and the only requirement in this regard is that the evidence of the
witness must be essential, for the just decision of the case as was held by the
Hon'ble Supreme Court of Pakistan in the case of "Imran Ashraf and seven
others v. The State" (2001 SCMR 424) at page 462 which is reproduced as
under:--
"36-C. There is no cavil with the
proposition that under Section 540, Cr.P.C. the Court seized with the matter
retains jurisdiction to examine any witness at any stage of the trial if his
evidence appears to be essential for the just decision of the case. This
proposition of law has been dealt with exhaustively by this Court in the case
of Muhammad Azam v. Muhammad Iqbal (PLD 1984 SC 95). Relevant paras, from this
judgment are reproduced hereunder:--
"It needs to be observed that
for purpose of acting under Section 540, Cr.P.C. (whether the first or second
part), it is permissible to look into the material not formally admitted in
evidence, whether it is available in the records of the judicial file or in the
police file or elsewhere. The perusal of both these records would show that if
evidence, in connection with the items already noticed, would
have been properly entertained the reasoning and decision of the learned two
Courts might have been different.
Sometimes apprehension is expressed
that any action by the trial Court under Section 540, Criminal Procedure Code
would amount to filling the gaps and omissions in the version or evidence of
one or the other party. It may straightaway be observed that insofar as the
second part of Section 540 goes, it does not admit, any such qualification.
Instead, even if the action thereunder is of the type mentioned, the Court
shall act in accordance with the dictates of the law. In fact the Court has no
discretion in this behalf. It is obligatory on it to admit evidence thereunder
if it is essential for the just decision of the case. It was held in Syed Ali
Nawaz Gardezi v. Lt.-Col Muhammad Yusuf (PLD 1963 SC 51) that even if a witness
who is ultimately to be produced by the accused in his defence is examined by
the trial Court as a Court-witness at an earlier stage than notwithstanding the
fact that the defence would have an extra advantage of putting leading
questions to the witness when standing in the witness-box as a Court-witness,
it would not affect the power of the Court (under Section 540, Cr.P.C.) to
summon and examine the witness if, of course, as was observed in that case, it
was in the interest of justice and thus presumably essential for the just
decision of the case. Again in The State v. Maulvi Muhammad Jamil and others
(PLD 1965 SC 681) when examining the effect of change in the criminal
procedure, regarding right to further cross-examination, during the transitional period,
this Court held that even though it would be for the benefit of the defence,
the trial Court, could avoid any prejudice to the defence by acting under
Section 540, Cr.P.C. After holding so a very weighty observation was made which
needs to be reproduced:
"This
section empowers a Court at any stage of inquiry, trial or any other proceeding
under the Code, to summon any person as witness, or recall and re-examine any
person already examined, and it is obligatory for the Court to summon and
examine or recall and re-examine any such person, if his evidence appears to it
essential for the just decision of the case'."
In the instant case, Respondent No.
2 and Muhammad Muslim are eye-witnesses of the occurrence. Their names were
mentioned in the calendar of witnesses. They were given up by the complainant
of the case without their knowledge and the subsequent act of the complainant
shows that they were not given up bonafidely. The Court has summoned them as
witnesses. In this situation, if their statement is recorded, there is no
possibility of any prejudice likely to be caused to the petitioners as they
will have ample opportunity to cross-examine them. There is no force in this
revision petition, therefore, it is dismissed.
(A.S.) Revision
dismissed.